I should’a been a lawyer…

Remember yesterday morning when in my layman’s refutation of Attorney General Rob McKenna’s lawsuit, I suggested that the federal home mortgage interest deduction would be an apt analogy to the implementation of the insurance mandate in our new health care reform law? Well later that day, that’s exactly the analogy that University of Washington law professor and constitutional expert Stewart Jay used to refute McKenna’s argument that the insurance mandate is somehow unprecedented:

“They are giving you tax benefits for entering the private market in some fashion. So for example, I get to deduct the cost of my mortgage – with a private bank – on my income taxes every year. In effect, I’m strongly encouraged to buy a home. So that’s the whole point of the deduction,” Jay said. “The fact that (people) are being encouraged to buy private instead of public insurance is an extraordinary argument for a Republican to make. If what he’s saying is true, the problem is corrected by eliminating private insurers from the system.”

Huh. So the question is, if the analogy is so obvious that even a layman like me could see, why can’t McKenna? Is he that bad a lawyer, or is he simply being disingenuous in claiming a loftier goal behind such obvious political grandstanding?


  1. 2

    Michael spews:


    Tacoma Representing!


    You should run RR Anderson’s comics as a Tacoma contribution to HA.

  2. 3

    feckless spews:


    Gregoire used the AG office to get to the governors office, but that was because she was effective and showed leadership for a real cause that was extremely complex, fighting and beating the Tobacco addiction industry.

    Gregoire showed that she used the public office for the public good as a resume builder, but she also did good.

    McKenna will try to the argue this is the same thing, his goal of denying kids insurance is the same as Gregoire’s goal of reducing addiction and cancer… oh wait.

    He’s doing this to “save” WA state’s $.

    On the radio McKenna defended the lawsuit by pointing out his concern for the federal budget deficit, is that in his job description/ official mandate? Isn’t the federal budget the responsibility of our federal representatives? Why does McKenna hate democracy?

    Want to help the taxpayers of WA state? Stop sending our federal tax dollars to subsidize republican states, WA state pays in much more in federal taxes then it receives in spending.

  3. 4

    rhp6033 spews:

    McKenna’s not engaging in constitutional scholarship or protection of our rights. He’s doing a cheap political trick, knowing that by “joining” the suit (instead of starting one of his own) his personal time investment is minimal, and the case won’t be concluded before his run for the governor’s seat is over. Long before then he’s accomplished his purpose: firing a shot across the bow of any Republican candidates who wish to challenge him by corralling tea-party activists.

  4. 7

    GetReal spews:

    WOW!!! I have been claiming a mortgage interest deduction for 30 years, and I didn’t have to? Gee, I wish I had known that. Hmmm…well, I guess it’s my own fault. I mean it’s not like the IRS was standing over me with a gun to my head demanding I take the deduction. How silly of me.

  5. 8


    Huh. So the question is, if the analogy is so obvious that even a layman like me could see, why can’t McKenna? Is he that bad a lawyer, or is he simply being disingenuous in claiming a loftier goal behind such obvious political grandstanding?

    It’s not necessarily an either/or.

    The answer to the question you pose in the last sentence above is both.

  6. 9

    Daddy Love spews:

    What the screamers bleating “They’re FORCING me to buy a private insurance product” they ignore (and purposely, because it’s clear they’re just out to catapult the propaganda instead of discussing anything at all) the really salient points:

    1. It’s a silly claim because one can satisfy the law’s requirements with any one of a number of public and private plans, or employer-provided group insurance for which one would not even have to pay. I always wonder how many of these aggieved voices are those of people who are on public insurance right now?

    2. This kind of “soft” mandate really is much closer to the home mortgage interest deduction-style “encouragement” than is it a gun-to-the-temple, march-you-over-to-the-slavering-jaws-of-Wellpoint coercion. If you don’t want insurance (although why wouldn’t you?), don’t get it and incur the penalty! Hell, man, they can’t even collect it from you! When I am arguing the point here or there, I often ridicule the courage or lack thereof of someone who is so afraid of being “forced” by a toothless penalty.

  7. 11

    Ekim spews:

    If Rob wins the lawsuit, does that mean the mortgage interest deduction will go away? Seems like a natural consequence. If so, won’t that really piss off the BIAW?

  8. 12

    MikeBoyScout spews:

    So, is Robby Mac against the deduction of WA sales tax? Clearly such a rule mandate is unconstitutional as one only pays sales tax on items purchased. There is no deduction if I manufacture my own hair shirt.

  9. 13

    Daddy Love spews:

    BTW, for your amusement. Thoughts on constitutionality from that notable crazed liberal hack, Associate Justice of the US Supreme Court Antonin Scalia:

    The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power.

  10. 14

    Alki Postings spews:

    There’s nothing complicated (or legal) about this. He’s just doing this to prop up his eventual run for Gov, and he needs to look up the anti-evolution, anti-reality retard vote (ie. Republicans) who KNOW Obama is a socialist Muslim here to outlaw Christmas and take our guns. To run for THAT party now a days, you have to be kinda of bat shit insane, and this is his entry into that field.

  11. 15


    With all due respect, Alki Postings, that makes no strategic sense.

    In a “Top Two” primary, who would come in ahead of McKenna in a gubernatorial race? Sure, there’ll be one Democrat in the top two — Gregoire if she decides to run again, either Inslee or Brown if she doesn’t. In the latter scenario, I can’t imagine that they’d both come in above McKenna … and I can’t imagine any other Republican or teabagger coming within hailing distance of any of those three.

    By its very nature, the Tea Party is a splintering activity. They’ll never coalesce around anyone who could draw many votes statewide. McKenna had nothing to fear on (the narrow space that is) his right.

  12. 16

    Roger Rabbit spews:

    Let’s be clear: The mortgage deduction doesn’t encourage people to buy homes, and you don’t get this deduction for buying a home. It encourages people to borrow money from banks and other commercial lenders to buy homes, which is not the same thing. This deduction is to bankers what the food stamp program is to farmers. Rabbits like me with 100% equity in their holes get squat from our Schedule B’s.

  13. 17

    Roger Rabbit spews:

    @4 “He’s doing a cheap political trick.”

    I would word it slightly differently — I’d say “He’s turning a cheap political trick.”

  14. 18

    Roger Rabbit spews:

    @9(2) It does occur to me that people who feel so strongly about “government interference” with their lives that they choose to pay the fee, penalty, tax, or whatchamacallit instead of buying insurance should not, under any circumstances, get free or subsidized medical treatment should they lose their gamble on staying healthy. Let the fuckers die.*

    * Just kidding! Wingnut joke. Of course we have to treat them. But if that cost gets shifted to taxpayers or paying customers, we should take them out and make them work it off on a road gang or litter pickup crew.

  15. 19

    nolaguy spews:

    Today, I pay for my own health care and insurance. I have a catastrophe type plan through Regeance that costs me about $120 a month.

    With the new HCR bill can I:

    1) Keep this plan?

    2) deduct the payments from my federal taxes?

    Not being a troll – I really want to know.

    I’ve been doing some research on my own and have not found the answers yet. “Approved health care plans” don’t seem to be defined, and I haven’t found language in the bill that mentions deductions from federal taxes filed.

    Any help is appreciated.

  16. 20


    The Militia Act of 1792 required the purchase or acquisition of a firearm, ammunition, a powderhorn (unless you used paper cartridges). It was never declared unconstitutional (although it was later shown to be ineffective.)

    Anyone who says Congress has never mandated personal purchases just doesn’t know history. I’m not gonna say whether the HC bill is good or bad, but the constitutional argument is without merit.

    Of course, our current activist Supreme Court considers precedent to be kinda irrelevant, so who knows how they will rule?

  17. 21

    Richard Pope spews:

    Feckless @ 3

    WA state pays in much more in federal taxes then it receives in spending

    I would doubt this is true for ANY state. Nearly half of all federal spending is BORROWED money. So even the states with the highest ratios of taxes to spending probably still have more spending than taxes.

    Maybe this would be the case if the federal budget ever gets BALANCED again. But Washington still has a substantial amount of military bases, and Seattle is regional HQ for many federal agencies. So maybe not even then.

  18. 22

    Richard Pope spews:

    Rewinn @ 20

    Congress does have the power in Article I, Section 8:

    To provide for organizing, arming, and disciplining the Militia …

    I guess if Congress wanted to, they could pass federal laws to override restrictive state firearms laws.

    In any event, Congress isn’t mandating purchase of health insurance, but simply providing more favorable income tax treatment for people who are covered by insurance.

  19. 23

    Richard Pope spews:

    Roger Rabbit @ 16

    At least in the United States, we don’t tax people for the imputed rental value of their homes. I think that some European countries include imputed rental value of homes into the calculation of their income taxes.

    Example: Rabbit and wife are retired. Their home is worth $400,000 and has a fair rental value of $18,000 per year. Rabbit and wife have to include this $18,000 as part of their income and pay taxes on it.

  20. 24

    nolaguy spews:

    If this HCR fine/tax was like the mortgage interest deduction, then people would receive the tax benefit if they purchased health care insurance.

    Stating it’s exactly like the mortgage benefit is a bit of a loose connection, IMO. The mandate is a much different application of the tax/fine/benefit/whatever-label-supports-your-position.

    The federal gov does not fine you if you don’t buy a house. (and saying that you’re penalized by not getting the deduction is the same argument twisting)

    It appears that health-care expenditures are not going to be tax deductible, unless they are over 10% of your income. (before the HCR bill, it was 7.5% – sheesh)

  21. 25

    Richard Pope spews:

    N in Seattle @ 15

    If McKenna and Rossi both ran at the same time, then shoring up Republican voters in the primary could be crucial to McKenna making it to the general election.

  22. 26

    Richard Pope spews:

    I don’t like the regressive nature of the tax penalty for health insurance non-purchasers. It starts out at $2,000 or so for a family of three once they meet the minimum income level tax filing requirements, and then is something like 2.5% of income, whichever is greater.

    So a single mom with two kids working at a small convenience store in Arkansas for $20K a year in Arkansas would pay more tax penalty than a single man with no kids making $75K per year as a lawyer in San Francisco.

    But this is a POLICY issue, not a CONSTITUTIONAL issue.

  23. 28

    Richard Pope spews:

    rhp6033 @ 4

    Very true. Astute political move, given that a very substantial percentage of people actually support what McKenna is doing. Perhaps over half, perhaps under half, but certainly not a tiny percentage.

    McKenna won’t really have to pay a dime for this — he is far too smart to actually send state money to pay Florida’s private law firm that is handling the lawsuit.

    The lawsuit, of course, will fail. But by the time the U.S. Supreme Court hears the case (or denies certiorari), there will probably be many changes made to the Health Care Reform package (perhaps eliminating the regressive nature of the tax penalty, and making it look more like an additional percentage tax, than a flat amount penalty). And McKenna can claim credit for the lawsuit prompting changes in the HCR bill.

  24. 29

    uptown spews:


    I’ll call you on your BS non-argument…

    For the purposes of the law, “individuals who can afford health-care insurance” is defined as people for whom the minimum policy will not cost more than 8 percent of their monthly income, and who make more than the poverty line. So if coverage would cost more than 8 percent of your monthly income, or you’re making very little, you’re not on the hook to buy insurance (and, because of other provisions in the law, you’re getting subsidies that make insurance virtually costless anyway).

  25. 30

    Chris Stefan spews:

    For running in statewide races in Washington I’m not sure McKenna’s made the smartest move. Identifying with conservative republicans seems to be about the best way to lose a statewide race here.

  26. 31

    sarah68 spews:

    A single mom with two kids making $20K a year would pay no penalty, because low-income people are not penalized. She and her kids would likely qualify for either Medicaid or another federal or state run program based on income.

    This legislation is NOT going to go after poor people to pay penalties. That’s a Tea Party lie.

  27. 34

    Richard Pope spews:

    sarah68 @ 31

    All this is true. The single mom making $20K a year with two kids should be able to get her kids covered for free with SCHIP Medicaid (up to at least 200% of poverty level), and would be able to get herself covered either for free on Medicaid (up to 133% of poverty level) or get subsidies for almost all the cost of insurance on her own.

    HOWEVER, there are going to be plenty of people (in reality) who don’t get this coverage for some reason or another. Applying for public assistance can be intimidating, and some states (especially in the South) are just plain mean to their public assistance clients. And some people are mentally deficient or mentally disordered, and simply can’t or won’t apply (even if it is “free”).

    So this will make a great “Tea Party” argument. It is easy for someone to see DSHS screwing them out of free health insurance that the new law supposedly entitles them to, and then the IRS screwing them out of more than 10% of their income because of what DSHS did.